Fogg. v. Hoskins

Bingham, J. The plaintiff claimed to recover under the original counts the $901 secured by the Leach mortgage. If the court can see that the identity of the cause of action is preserved in the new counts, they may be allowed. It is clear that the identity is preserved in the first three, and they are allowed. If the purpose of the fourth count is to enable the plaintiff to try his right to recover of the defendant the $1599, it would be a different cause of action, and the count was properly disallowed. But we understand that the purpose of it is to enable the plaintiff to recover the damage done to his security for the $1599 by the defendant’s failure to cancel the Leach mortgage, as the plaintiff alleges the defendant agreed to do. If such is its purpose, the legitimate damage cannot exceed the sum for which the plaintiff could have redeemed the Leach mortgage, and thus made his, securing the $1599, a first mortgage. The sum due on the Leach mortgage was the matter in issue under the original pleadings. This count also should have been allowed. Gilman v. Cate, 56 N. H. 166; Burnham v. Plant, 57 N. H. 41; Cahill v. Terrio, 55 N. H. 571; Clay v. Bohonon, 54 N. H. 474; Stearns v. Wright, 50 N. H. 293. Exceptions sustained. Stanley and Allen, JJ., did not sit.